Opinion
1044P03
Decided April 14, 2005.
In this probate proceeding, the pending motion and cross-motion seek relief with respect to a subpoena and a demand for discovery and inspection served by potential objectants, two charities, who have requested SCPA 1404 examinations of the attesting witnesses and the attorney-drafter prior to the filing of any objections.
The decedent died on June 23, 2003. The decedent's spouse is his sole distributee. The propounded instrument, dated April 30, 2002, establishes a marital trust for the spouse and bequeaths the residuary estate to her outright. The spouse's children are the remaindermen of the marital trust.
The two charities are legatees under a testamentary instrument dated June 19, 1978. The charities served a subpoena pursuant to CPLR 3120 upon an accountant, a non-party, directing that he produce numerous documents relating to the assets and tax returns of either, or both, the decedent and his spouse. The charities also served a demand for discovery and inspection upon the proponent, the nominated executor. The proponent moves to quash the subpoena. The charities' cross-motion opposes the motion to quash the subpoena and seeks to compel the proponent to provide all of the items that they requested in their demand for discovery and inspection. The items that are the subject of the cross-motion are the following: (1) Item 3(b): information with regard to legal services rendered to the decedent's surviving spouse; (2) Item (5)(ii): information concerning the joint assets of the decedent and the surviving spouse; (3) Item 8: income tax returns of the decedent; and (4) Item 16: past and continued marital status of the surviving spouse.
SCPA 1404(4) provides that the party conducting the 1404 examinations is entitled to utilize the provisions of Article 31 of the CPLR to obtain document discovery. CPLR 3120(1) authorizes a party to serve a subpoena duces tecum upon any person directing the production of designated documents for discovery and inspection. CPLR 3120(3) provides that at the same time that the subpoena is served upon a non-party, it must also be served upon all of the other parties. Inasmuch as the charities did not serve the subpoena upon the decedent's spouse, who is both a party to the probate proceeding and appears to be the subject in whole or in part of some of the documents in the possession of the accountant, the motion to quash the subpoena must be granted.
With respect to the demand for discovery and inspection made upon the proponent, the trend has been to broaden the scope of discovery in connection with the SCPA 1404 examinations to encompass any area that might support any permissible objection to probate. The rationale for such liberal disclosure is not only because the purpose of the SCPA 1404 examination is to ascertain the merit of any contemplated objection but also because the examining party will not have a second opportunity to examine the 1404 witnesses except by court order, which will not be lightly granted (SCPA 1404; Matter of Ettinger, 2005 NY Slip Op. 25017, 2005 WL 147136, holding that a party was entitled to medical authorization to obtain the decedent's medical records prior to conducting the 1404 examinations). In Matter of Delisle, 149 AD2d 793, 794 (1989), the court held that it was within the "broad discretion" of the Surrogate to direct in connection with the witnesses' 1404 examinations the production of "copies of decedent's Federal and New York income and gift tax returns; checking account ledgers, canceled checks, and other bank books; safe deposit box inventories and records of advancements made by decedent; and copies of all correspondence relating to stock transfers."
It appears that the charities want to explore whether transactions between the decedent and his spouse, who was married previously, might support objections alleging either or both lack of testmentary capacity and undue influence. The decedent's tax returns and the assets that he held jointly with his spouse might be relevant in proving such objections. Under these circumstances, the court, in the exercise of its discretion, directs the proponent to supply the requested documents concerning the joint assets of the decedent and his spouse and the decedent's income tax returns for the years 1999 through 2003. The proponent does not have to respond to the request for information about legal services rendered to the surviving spouse not only because this information appears to be privileged but also because it is not directly related to any objection that might ultimately be filed in this proceeding. It further appears that the proponent has already provided the information concerning the spouse's marital status, rendering that request moot.
Accordingly, the motion to quash the subpoena is granted and the cross-motion is granted to the extent indicated above.
Settle order.